Supreme Court Appointments And Lame Duck Presidents: Yes, Both Sides Do It
The politicization of Supreme Court appointments didn't start with Republicans last night.
Since this is likely to get lost in the lively comment thread we’ve got going on in response to my post about the political battle over the seat vacated by the death of Justice Scalia, I figured it was worthwhile to highlight this article published by Politico on July 27, 2007:
New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
Of course, there’s also this:
A White House spokeswoman, Dana Perino, said Schumer’s comments show “a tremendous disrespect for the Constitution” by suggesting that the Senate not confirm nominees.
“This is the kind of blind obstruction that people have come to expect from Sen. Schumer,” Perino said. “He has an alarming habit of attacking people whose character and position make them unwilling or unable to respond. That is the sign of a bully. If the past is any indication, I would bet that we would see a Democratic senatorial fundraising appeal in the next few days.”
Charles Schumer, I would note, will be the incoming leader of the Senate Democratic Caucus in 2017 and will serve as either Senate Minority Leader or Senate Majority Leader depending on how the battle for Senate control plays out in November.
So, yes we’ve got a case of bipartisan hypocrisy going on here, but that should hardly be surprising. Ever since the Bork nomination Supreme Court nominations have become increasingly politicized, and that has only become worse as our politics has become more and more polarized. Many books and countless miles of column inches have been written about why this has happened and what can be done to solve it, but to deny that it exists, that it exists on both sides of the political aisle, and that it predates the Obama Administration is to quite simply deny reality.
As I said in one comment to the Scalia post, anyone who doesn’t believe that Democrats would be acting the same way as Senate Republicans if the situation were reversed is simply refusing to recognize reality. If it were Ruth Bader Ginsburg who had suddenly passed away during the final year of a a Republican Presidency, there would be plenty of Democrats calling on the Senate to forego action on a nomination until a new President takes office. If the Senate at the time were controlled by Democrats, the odds that their Majority Leader and their Chairman of the Judiciary Committee would be taking the the exact same position that Mitch McConnell and Charles Grassley are taking. Similarly, Hillary Clinton and Bernie Sanders would be sounding like Ted Cruz on this issue, and Ted Cruz would be decrying the Democrats’ partisanship in refusing to allow the outgoing Republican President to have his nominee given an up or down vote. Only someone who is incredibly naive about how politics works could believe the situation would be otherwise.
Schumer?
What a pathetic, specious argument.
@C. Clavin:
The future leader of your party’s Senate Caucus.
Irrelevant argument. The GOP is desperate. They’re using partisan judges to fight for the rights of corporations to spew greenhouse gases or for repulsive bigots to deny services to gay people. They were desperate in 2007 and they’re really desperate now. They are going to appear insane especially when Obama nominates a photogenic moderate who is too much for a bunch of hacks who take their orders for the Koch brothers. There is no way mitigate that.
@Doug Mataconis: and, was Schumer immediately backed by most of his Senate colleagues and all of the Presidential candidates?
No, he was not.
There is a “YUUUGGEE” difference between Schumer’s voicing concerns about a hypothetical vacancy as compared to McConnell & all GOP hopeful nominees unilaterally STATING they will not even consider a nomination from Pres. Obama … even before Scalia’s body is cold.
@Gustopher:
If you don’t think Senate Democrats would have acted in the manner Schumer was calling for if Bush had had a chance to make a SCOTUS appointment during his final year or so in office, you’re simply being naive.
@dmhlt:
Yes, the difference being that Democrats in 2007/2008 never got a chance to act. If they had, I am confident they would have followed Schumer’s advice.
Obana will not be a lame duck until Election Day. The term refers to officeholder who retain the legal authority of their office with a weakened moral authority, given that the mandate from the people has been bestowed on someone else in the election.
When the term was coined, there was a full four months between Presidential elections and Inauguration day, so the lame-duck period was significant.
Sloppy and lazy thinkers often expand the concept to refer to any officeholder nearing the end of their term, but that renders the term meaningless.
To the actual issue here – yes, all politicians are opportunistic hypocrites, But the question is not about who can more securely charge the other side with hypocrisy – but rather what will actually happen. As others have pointed out, Schumer’s comments were entirely hypothetical. What would have actually happened if there was an opening in Bush’s last year? What should happen now?
Doug- Maybe. OTOH, there is a long tradition of politicians talking tough when there is no risk of having to follow through. There is a also a long history of the Dem senate being fairly spineless. I suspect that if it had been this early, they would have let it go through, especially since it is not very good electoral politics in general, though it would be a close call. July or August? I agree.
Steve
Schumer was claiming that Bush had been deceitful. His actions were based upon Bush’s alleged track record — he wasn’t claiming that presidents or Republicans should not nominate judges.
The GOP is arguing that a lame duck president shouldn’t appoint judges. We have presidential elections every four years. Is the government supposed to put itself on hold 25% of the time?
@Doug Mataconis:
I’m fairly certain that Bush would have nominated another ideologue like Alito to the court. Given how dead Bush was in those final year it would have blown up in his face. Schumer and co would not have been afraid of hearings in the end. What’s important for the GOP is that the liberal will kick their ass if spoken to. It would be like the Benghazi hearings. Pure carnage of the inferior party.
@Doug Mataconis: Democrats compromise — often compromising their principles — and they would have had committee hearings, and if the nominee cleared that, then it would have gone to the full senate. Any nominee would have faced some very hard questioning, and someone with no record might have been voted down.
Too many Democratic senators are from purple states, and are fairly conservative, for a left-wing refusal to stand for any length of time. And, this was before the complete decimation of the blue dogs.
The Democrats don’t have the unity to accomplish what you assume they would do. They never have. It’s not naive to recognize that, it’s just paying attention.
@Gustopher:
Ah yes, the partisan always believes his side can do no wrong.
I mean, hell, the Democrats treated George W. Bush as a legitimate president, despite him losing the popular vote, and being installed by the Supreme Court after Florida deliberately botched the recounts.
I don’t know what Democrats you see in your little world, but they aren’t like the Democrats in reality.
@Doug Mataconis: I am sure some would have loved to do this wrong, but they were incapable of doing it. They just aren’t good enough at it.
@Gustopher:
And yes…that was Scalia.
@Doug Mataconis:
Yes, Doug…a single…one…future possible leader…in a completely hypothetical context.
No equivilancy.
Ah yes, the supposed “independent” libertarian always believes both sides do it…
1. To state the obvious, Schumer making that statement out of anger because he felt Bush SC nominees had not been truthful in their confirmation hearings is not the same as McConnell and Grassley saying they won’t even allow an Obama nominee a hearing, just because.
2. I don’t know about others but what angered me wasn’t the GOP proposal or even your embrace of it. What angers me is you, a supposedly intelligent and educated man, pitifully defending that proposal with nothing more than “Democrats might do it too” and “it’s not illegal.”
Mike
@C. Clavin:
Umm, no he will be the leader in 2017. Harry Reid already endorsed him, as did Dick Durbin, the only other Senator in the Democratic Caucus with the political clout to make a run for the position.
@MBunge:
Sorry Mike but it’s politics. If it’s not barred by the law or the Constitution, the only relevant question in my opinion is whether the voters are okay with it.
The last time the Democrats were unified on anything in the face of opposition it was to pass the Republican alternative to Clinton’s health care proposal, after it had been implemented by Republicans on the state level. And the Democrats were attacked viciously for that, and learned their lesson.
The prospect that the Democrats could do this is laughable.
It’s not “Both sides do this” it is “both sides have one or more people who would like to do this”, but it is only acceptable on one side to actually do it.
@Doug Mataconis: I believe C’s statement is to the effect Schumer was a possible future leader at the time of the statement you quote.
I see the “well, they would do it (even though they never have), so it’s ok that we’re gonna do it” dog and pony show continues.
This wasn’t about “it’ll get lost” – it’s about “I was getting my ass handed to me, so I’m trying to move the goalposts”.
I haven’t always agreed with you, but up to now I’ve maintained respect for you. That’s fading.
Wow Doug. You are really beating the drum hard this weekend.
Of course. If it’s beyond accepted norms, even blatantly unethical, who cares? It’s not illegal after all.
It’s not like there’s a non governmental authority in place to deal with unethical behavior right? I can see why you are so supportive of the GOP’s deciding to just give up their legal responsibilities for over 9 months. Kindred spirits and all.
Also worth pointing out, Doug, the Democrats *did* block lower court appointments for years in Bush’s first term, with the specific stated goal of holding those posts open until after the 2004 election. A number of liberals pundits specifically said that if a post opened on SCOTUS, the Democrats should filibuster for Bush’s entire term if need be. This never eventuated because the first position opened after the Gang of 14 Agreement. But I have no doubt that had a liberal justice died in 2004, the Democrats would have filibustered past the election, given that they were actively filibustering multiple federal court appointments at the time, including the DC Circuit Court.
@Doug: You can’t take a statement made about a hypothetical and say that it is identical to the Senate Majority Leader proclaiming, within a few hours of the death, that the Senate will not confirm a new Justice for at least 11 months because they don’t like the current president.
Beyond that, the issue of “both sides do it” obscures the question of whether they should do it or not. (and the comparison is all the poorer when we are not talking about two cases of actually the same behavior).
But yes: the Senate can, constitutionally, run the clock out.
I have been at a soccer tournament all weekend, so have not had time to fully digest all of this, but while I concur (as noted) that there is nothing constitutional to stop the Senate from failing to confirm a new Justice, it does raise the question of how long is too long to do so. If 11 months is ok to not fill a slot, why not 18? or 24? or 96? What’s the line?
Perhaps we should debate, in detail, whether a SC Justice unexpectedly dying would count as the “extraordinary circumstances” Schumer was referring to? Because it seems to me that is fairly extraordinary.
In any case, of course Obama will nominate someone. Of course the Senate will try to prevent them from being approved. The question is whether they will succeed.
@Doug Mataconis:
Article 2 Section 2 calls for “advice and consent” of the Senate, not “refusal to act during the final year of a presidential term.”
It isn’t necessary for the Senate to rubber stamp a nominee and they are free to vote nay, but absolutely refusing to consider a president’s nominee simply because it is an election year doesn’t exactly sound like “advice and consent.”
@Steven L. Taylor:
How many months are there until January 20th, 2017?
How many months are there until January 20th, 2021?
Then keep adding 48 months until sanity returns.
@Kari Q:
Indeed–only seven have died in office since 1900, and of those only two have died in office (Scalia and Rehnquist) since 1954.
There are horrible antecedents of Senators of both parties filibustering pretty qualified nominees for petty political reasons. On the other hand, saying that they will not vote a nominee even before there is one is pretty unheard of. At least Estrada was nominated to be filibustered.
A lotta guns being jumped. As the election approaches if it appears the majority in the Senate may change this Senate could confirm an Obama appointment, if it seems certain the next President will have a free hand on the matter, assuming Obama’s appointee isn’t too bad.
A problem for Obama: If the Senate swears to block anybody he names simply because he named them, he does terrible damage to the career of anyone he nominates. He might as well nominate himself and at least give everybody a bit of entertainment.
@Kari Q:
Within the context of his remarks, I presume that Schumer would have defined “extraordinary circumstances” as a nominee who was not hard right and whose lack of hard right credentials had been well vetted and verified.
Schumer was alleging that the Senate took Bush and the nominees at their word, and that trusting them was a mistake.
@dazedandconfused:
He’ll almost certainly nominate sitting judges on federal courts of appeals. The worst that can happen to them is they go back to their existing lifetime appointment.
My money is on Sri Srinivasan or Patti Millett, with Sri being the favorite by quite a bit.
1) He’s Asian (more precisely Indian) – there has never been an Asian justice
2) He has spent almost his entire career as a litigator, which gives him a great deal of cover with regard to his ideological stance on hot-button issues due to the fact that litigators represent the interests of their clients, which do not necessarily dovetail with their own positions
3) BS, JD and MBA from Stanford – he’s clearly bright
4) Clerked for Wilkinson and O’Connor – harder for Senate Republicans to paint him as a left-winger
5) Long history of advocacy before the court (he’s argued 25 cases before the justices).
6) Best of all – his nomination to the DC Circuit received unanimous approval from the Senate Judiciary committee in 2013, and was subsequently confirmed by a 97-0 vote in the full Senate. They loved him 3 years ago, so they’ll have a difficult time defending freezing him out now.
@Steven L. Taylor:
Whatever Senate Republicans think they can get away with.
@HarvardLaw92: Seriously, the dude needs to stop digging. the hole is deep already.
@HarvardLaw92:
The damage is mostly being a failed SC nominee. Not a lot of second chances for those guys. They may also be additionally damaged, and deeply so, in the ugliness of the efforts to discredit them during a confirmation hearing. There are multiple ways one can be damaged by such a process. I suspect “Long John Silver” bears emotionally scars, perhaps permanent ones, and he won. The Senate is not the civilized place it was at the time too.
@Doug Mataconis:
Is that really your opinion? Does it extend to other issues or just this one?
I seem to remember you having opinions about the rightness or wrongness of political actions beyond their technical legality and whether the voting public will let them get away with it.
@Steven L. Taylor:
It seems by Doug’s current logic, the line is whatever the voter’s will let them get away with. If the electoral geography is such that the Senate can prevent a vote for the entirety of a president’s term, then that would be fine, unless there is some nuance to his position that he has yet to point out.
@dazedandconfused:
Eh, under a different set of circumstances, I’d agree, but anybody who thinks that – assuming Dems win the WH and the Senate this November – that at a minimum a failed nominee wouldn’t immediately be renominated – and confirmed – needs to get new glasses.
Frankly, it wouldn’t surprise me if Senate Dems don’t invoke nuclear with respect to SCOTUS nominations if they win back control of the chamber. You’ll almost immediately see Scalia be replaced with a flaming liberal instead of the moderate Senate Republicans would likely get if they’d think strategically right now.
Likewise Ruth would cheerfully step aside, safe in the assurance that she’ll be replaced with another liberal. Breyer would be convinced to do so as well, I suspect. All in short order. Note that their replacements would undoubtedly be spry, young liberals in their late 40s who’ll camp out in those seats for the next 30 to 40 years. In one fell swoop, we’d have a locked 5-4 (at worst, 6-3 if Kennedy maintains his current positioning) liberal majority on the court, and it wouldn’t matter what Republicans thought of it. Even if they subsequently regain control of the chamber, the best that they can hope for is to replace Kennedy and possibly Thomas, which buys them nothing. The court would remain locked on a liberal heading for a generation, and that would be the end of their ballgame. Culture war over – Republicans lose.
Thinking more than one step ahead has never been their strong suit.
It’s pretty simple, if you care about the Constitution and our system of government functioning and surviving, a Supreme Court Justice should be confirmed in the next few months.
@Davebo: Is Doug one of the guys who, when talking about the Clintons, takes the approach that character matters and we can’t simply look at the legality of the action? Serious question. My inclination is that he has taken that approach at times, but I can’t remember.
@Grewgills: I think the nuance comes in walking back (or flat denial of) what he has said in the past–as in “there are no circumstances in which I would consider voting for a democrat” cf. “that’s simply not true, I’ve voted for lots of democrats.”
@HarvardLaw92:
FWIW, I’m probably wrong, now that I think about it, in assuming there will be a hearing before the election. Nothing good, for McConnell, could happen. He simply need not schedule one and neither does the Judicial Committee.
@dazedandconfused:
That’s the point – Grassley will simply prevent the Judiciary committee from considering any nominee. It’ll never get to the full Senate. One senator is denying the president a constitutional prerogative.
In reference to our current situation Doug, I can only say that this is one of the stupidest things you have ever said, simply because it has ABSOLUTELY ZERO relationship to the reality of what is happening here.
Consider, there is as of yet, no Supreme Court appointment. Allow that to sink in. What that means is that the GOP has politicized the President’s fulfilling the most basic of his Constitutional duties. They aren’t saying “This nominee is unacceptable,” They are saying “You are unacceptable.” Basically this amounts to a coup with out the guns and tanks.
You have just diagnosed the political polarization that has been infecting this country since the Clinton era, and which Democrats demonstrated quite frequently during the Bush 43 Era. I’ve written many times about why this is a bad thing, but it is nonetheless part of our modern political culture and I have no idea how to change it. Obviously, based on the results of elections in 2008, 2010, 2012, and 2014, the voters don’t seem to mind it very much.
Doug,
Read what Schumer is actually saying. He’s not saying he wants to stop all confirmations under Bush. He’s saying he wants to subject them to much stricter scrutiny since the confirmation hearings of Roberts and Alito showed they should not be taken at their word. His main point is that he wants to reverse the presumption of confirmation. No need to do that if you are stopping all confirmations, period.
@Doug Mataconis: I’ve written many times about why this is a bad thing
You did not write about this latest bit of polarization as if it were at all a bad thing.
Mike
@Doug Mataconis:
You’re rewarding relentless pushing of the Overton window with your faux-oblivious equivocation.
@Grewgills:
My point is that there is nothing in the Constitution that requires the Senate to confirm a nominee presented by the President, or even to vote on that nominee. In the end, the only “check and balance” on that Senate discretionary authority is the will of the voters as expressed at the ballot box.
@Doug Mataconis: My point is that there is nothing in the Constitution that requires the Senate to confirm a nominee presented by the President
And there’s nothing in the Constitution and requires the President to do more for the State of the Union than send Congress a post-it note with “It’s all good. Vote for my ideas.” There’s also nothing in the Constitution that prohibits a President from referring to the Senate Majority Leader as a “scum bucket.”
Mike
@Doug Mataconis: Doug, honestly you seem to have locked yourself into a false dichotomy. You see a binary EITHER Dems don’t do it at all OR both sides do it equally. I haven’t seen anyone claim that Dems are saints who never obstruct or defame. But can you really claim the situation is symmetric?
OK, Dems opposed W. Did they vote as a block against Iraq just because W proposed it? (Although they should have.) Did they hold endless hearings on 9/11 demanding to see W’s hoard of lost emails? Did they threaten to shut down the government? Did they pick out some mid level manager at the IRS or elsewhere and destroy her career over trivia? Did they meet over dinner on W’s first inauguration night and agree to oppose everything he proposed? There were people who wanted to see W’s missing Nat’l Guard records, but anything remotely like birtherism? Did they say W couldn’t make appointments because he was illegitimate, despite having actual legal grounds to do so? Do MSNBC and the lefty blogosphere remotely compare to FOX, Limbaugh, et al?
You’ve got one quote from Schumer to balance the current unanimous opposition by the Rs.
Can you see any difference in degree?
Website called OUtside the Beltway toes the beltway line of facetious and superficial opinionating in the name of “Both sides do it”.
Up next, bipartisan “No Labels” group labels Sanders “scary and probably bad-smelling”.
@Doug Mataconis:
Conservatism is about conserving norms and traditions.
Conservatism, apparently, is now a word that means nothing…because it means absolutely anything you want it to mean.
Conservatism is dead.
@Doug Mataconis:
To the contrary, much of this is voter-driven. We go through our daily lives bumping up against people of all races, creeds, denominations, and political persuasions, but we get into the voting booth and we act like all those people live in a different country waaaaay over there. (Both sides!)
@MBunge:
To the extent that’s true, it’s a rather mild rebuke isn’t it?
We’re much too early in this process to panic. Scalia has not yet been buried, Obama has yet to name a replacement, Republicans have yet to respond to that replacement, nominees for president haven’t even been chosen, etc.
Sure, the GOP has signaled that they intend on being just as obstructionist as possible, but is that the opening volley or is it just a shot across the bow? (Or is it a flare in the sky, hoping for divine intervention as they drift helplessly with the current?)
The way I see it, the GOP have their work cut out for them on this one. The chances of success are so low, I think we’ll see -possibly after Scalia’s funeral, after Obama floats a pick — that we’ll see a major walk back.
@gVOR08:
One quote, presented out of context.
@Doug Mataconis:
Article 2 Section 2 says that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”
Not may, but shall. “Shall” is an obligation — the president and the senate are required to make a good faith effort to fill these vacancies. There’s obviously no strict timeline for getting the job done and the Senate can reject the president’s nominees, but absolutely refusing to offer that advice and consent would appear to be unconstitutional. It also creates a separation of powers problem — the Senate is refusing to allow the president to carry out one of his duties.
Interesting how “shall” and “may” are different things but “shall not” and “may not” both have the same prohibitive intention.
In either case, Obama should get a move on. Possibly find some decent candidates who would never have a shot in any situations but are willing to remove their chances of ever getting on the bench for the sake of pressuring the GOP.
Is there anything in the constitution that would prevent the sitting president from killing the Republicans in the senate, pardoning himself for the crime, and then repeating the process with anyone who suggests impeachment?
Or using the power of pardons to release violent felons in red states?
I mean, if what is constitutionally permitted is the only issue, why shouldn’t the president play hardball?
Since you mentioned Robert Bork –
Robert Bork fired Archibald Cox, the Special Prosecutor investigating Watergate, after both Eliot Richardson and William Ruckleshaus resigned rather than do so. Nixon tried to pretend he’d fired at least one of them. Bork, who was Solicitor General at the time, said in his book that he thought about resigning. But he didn’t. This sole act made him unfit to sit on SCOTUS, in my book.
So, I tire of the Bork nomination being cited as precedent. I would imagine that it was put forward by Reagan, after being warned by Senate Democrats that Bork was unacceptable to them, for the very reason of establishing a precedent for this, only I’m not certain Reagan was smart enough to do stuff like this. But perhaps someone on his staff was.
There’s also a matter of Article 3 Section 1, which mandates that there be a judiciary. The Constitution requires that we have Supreme Court judges — it’s not a suggestion, but a command.
Would anyone possibly dream of arguing that it would be constitutional for the president or senate to refuse to make any appointments while they waited for the remaining court members to die off so that we could be left with a government without a Supreme Court?
Wouldn’t the lack of a Supreme Court that resulted from the failure to appoint anyone create an obvious separation of powers problem, since we can’t have a Supreme Court unless the president and senate do their jobs? It should be pretty obvious that the president and senate are not free to sit on their thumbs and leave us with a series of vacancies for the sake of it.
Everyone above has combined to annihilate Doug’s contention that Schumer’s isolated hypothetical statement is equivalent to the Republicans’ united opposition to the President’s nominating ANY candidate, no matter how qualified. That is truly unprecedented, and Doug should have known better, but then Doug is a Republican fellow traveler, so he has to defend the conceit that “his” team is at worst the same as the Democratic team.
Time to move on to consider what happens next. Obama has said he would not consider a recess appointment at this time, but would soon submit a nominee in the ordinary course.I suspect he will soon submit a nominee, and the Republicans will respond by not even allowing the nomination to go forward. While this will please the Republican base, Obama will have most of the media and maybe the country completely on his side on this issue, and the pressure for a vote will build. This will galvanize the Democratic base, who ordinarily ( and wrongly) don’t think about the the importance of judicial nominations. I suspect that the pressure will force the Republicans to eventually vote. If they vote no, it will again look bad as I’m sure any nominee Obama will put forth will be well qualified.
Even if they vote NO, it may not all be bad for Democrats. Cases on affirmative action and labor rights that liberals were poised to lose will now end 4-4, leaving in place lower court opinions favorable to liberals. Moreover, most appellate circuits are now dominated by liberal appointees and they can make liberal decisions freely without fear of being overruled by the Supreme Court.
Time is therefore working against the Republicans here. If the Republicans do stonewall, and the Democrats get the Presidency and a Senate majority by energizing the base campaigning on the issue of Republican obstructionism, then the Democratic President will probably get to appoint who they want, especially since it’s likely that Democrats will nuke the filibuster on Supreme Court nominations. You could see an Associate Justice Pam Karlan( female, bisexual, and very liberal)on the Supreme Court bench.
It might be a good idea for the Republicans to cooperate with Obama to nominate and vote a moderate like Sri Srinivasan to the Court. But the Republicans haven’t done that kind of reasonable bipartisan compromise for quite some time, and indeed I think they are now incapable of it. So I expect massive, total obstructionism. Hopefully, Obama and the Democrats can make them pay.
Americans needs learn what happens when you put garbage in congress. I want Obama to nominate the most chaos- and tantrum-inducing people possible without being entirely unreasonable. Chaos, gridlock, economic disaster, constitutional crises, Ukraine parliament scenes.
If you ever want to read a real blog isntead of OTB, here is Charles Pierce recommending Obama nominate Anita Hill.
http://www.esquire.com/news-politics/politics/news/a42165/scalia-succession/
@stonetools:
From the standpoint of political gamesmanship, I expect that the GOP will win this one. The Republican base sees as a tool for enforcing its values. The Democratic base does not have the same attitude, and the general public is indifferent.
Unless the Dems can equate the GOP’s failure to act to the unpopular government shutdown, the Republicans should have the advantage. Scalia’s death is obviously seen as an opportunity to increase turnout for the GOP, and that view is justified.
Cry me a river. Paybacks a bitch. Wait until Obama’s executive orders start getting shot down.
“There are some who believe that the President, having won the election, should have complete authority to appoint his nominee…that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view.” – Sen Barak Obama during Alito’s confirmation hearings.
@Jack:
Jack –
You’re making the point the point Dems are making.
Your Obama quote was taken DURING ALITO’S CONFIRMATION HEARINGS.
During. Alito wasn’t blocked from getting a hearing.
Let Obama make his choice, and the Senate can either vote Yes of No. Anything else is an abdication of their constitutional duties.
@stonetools:
I would disagree. Time is the GOP’s best friend right now. Running out the clock gives them the best chance of getting what they want. It’s just that what they want is such a pipe dream that even a “best chance” is not really much of a chance.
And seriously?
I’m fully willing to accept that I’m an outlier on this, but I am sick to death of the culture wars being fought in the judiciary. Replace one culture warrior with another?
No thanks.
@EddieInCA: Lame ducks don’t get to make lifetime appointments. Suck it up.
@James Pearce:
If Clinton wins the presidency and the Dems regain their Senate majority, then the GOP will ultimately lose because their ability to influence the choice of justice will have been reduced.
But as a ploy to boost turnout from the base this November, this is a winning idea. so it’s still smart politics, in spite of its unconstitutional nature. If I was a GOP consultant, I would be recommending a similar strategy.
@Guarneri:
Payback for what exactly? Being born?
@Jack:
Goof, Obama hasn’t even nominated anyone. You can’t tell us a single thing about the intellect, personal character or politics of a nominee that doesn’t exist yet.
So you’re pulling out a quote that says, “Intellect and character isn’t enough. Need to know more,” all in service of the idea that, no, actually you know all you need to know. Lame.
Are you guys really looking forward to a year of making dumb arguments because your political elites continue to be weak and powerless?
@Pch101:
Running out the clock is not unconstitutional. But thanks for your opinion.
You’ll notice that Democrats invoke the Constitution and precedence only when it fits their narrative. Democrats were uninterested in historical guidance when they were shoehorning a massive generational reform through Congress without any consensus for the first time in history or filling imaginary recess appointments. When it works out for them they transform into strict traditionalists.
The longest vacancy on the Supreme Court was 27 months between the Tyler and Polk administrations before the Civil War. The longest vacancy since the court went to nine justices in 1869 was 391 days.
@James Pearce: Odd how you snipped out the beginning of the quote which was, “There are some who believe that the President, having won the election, should have complete authority to appoint his nominee…”
I’m sure it wasn’t intentional on your part, though.
@Jack:
I can see that you and nuance aren’t on speaking terms.
Hint: There is a difference between considering but voting down a nominee and refusing to show up to work.
@Pch101:
Says the man who supports a president that spent money to close and guard open air monuments during a budget showdown.
@Pch101:
We are in a Presidential election year. Time to educate the Democratic base. Frankly, I’m sick and tired of the idea that you CAN’T educate the Democratic base about the issues. Thanks to Bernie Sanders and others, the Democratic base knows about Citizens United. Now the easiest way to get rid of Citizens United is the way it came here-a 5-4 Supreme Court decision, with the fifth liberal casting the vote to reverse . The dumbest liberal I know can count to 5.
Now Obama-earnest, but clueless, liberal reformer that he was-has largely ignored the messaging part of the Presidency until recently, and was slow to use the judicial nomination power to populate the federal judiciary with liberals, but thankfully he has changed on both fronts. He can certainly use the bully pulpit and campaign energetically for a vote on the Supreme Court nomination, and beat into the head of the Democratic base the importance of coming out and voting for a President and a Democratic Senate in November, so that the President can appoint a fifth liberal Supreme Court justice . The candidates certainly can too, instead of campaigning on pie in sky legislative proposals that cannot pass until after the 2020 redistricting ( I’m looking at you, Bernie Sanders).
In the meantime, Democratic majority appellate circuits (9 of 13 of them ) can strike down restrictive abortion laws, overturn “voter ID ” and “religious freedom” laws and uphold gun safety laws without fear of reversal for the time being. All that is to the good, and will maybe put pressure on the Republicans to compromise to allow Obama to appoint a moderate (although I doubt they can compromise at any point).
Progressives are skeptical of the Constitution and separation of powers. Democrats are a party that believes enumerated powers stand in their way. Obama has displayed a contempt for the Constitution. As such, conservatives have a moral obligation to reject any attempt to get even a vote for another Supreme Court Justice.
We’re not talking about good-faith disagreements over what the Constitution says anymore, liberals simply want to do away with what the constitution says and remold it into what they want it to say. The president has made this extraconstitutional case the centerpiece of campaigns, and his admirers have heartily cheered the idea.
Just listen to the Democratic Party debates. Bernie Sanders’ litmus test for a Supreme Court nomination is pretty simple: the candidate must support restrictions on the First Amendment. Most Democrats agree. College student clamor for safe spaces and want to rid us of micro aggressions, this is simply more liberal tripe to rid us of the freedom of speech, and another Obama justice will likely be on board with those wishes.
No one is saying Obama can’t send a nomination. Please, do. But Republicans will have to make the case that a nominee should not only be qualified, but ideologically qualified. They will have to argue that a lame duck president should not be empowered to change the composition of the Supreme Court. After all, Republicans won both Houses making an argument against Obama’s overeach.
1) “Lame Duck” refers specifically to the period after the new president has been elected, but before he or she is sworn in. We aren’t anywhere near the lame duck period.
2) At this point, let the chips fall where they may. Obama will make his nominee known in due course. If it is Sri Srinivasan, who was approved 97-0 less than three years ago, Republicans will have a difficult time making the argument he is unfit to even receive a hearing. The politics behind refusing him a hearing would be transparent.
3) Republicans are taking a pretty big gamble here. Were we further along in the presidential nominating process, it would be a tactical decision, but right now they have no way of knowing if their party is even going to nominate someone electable.
4) It isn’t unconstitutional to run out the clock. That doesn’t make it a smart strategy.
@James Pearce:
I’m not a fan of putting Karlan on the bench, but rather I’m showing how the Republican strategy of massive resistance could backfire by resulting in the appointment of the Republican’s “worst nightmare” to the Supreme Court bench. FWIW, I think both Obama and Clinton would appoint more moderate candidates (Sanders would be a different story).
It’s a win-win for the Democrats, because ANY Democratic candidate confirmed to the bench is going to move the court substantially to the left, and endanger Citizens United (campaign finance), Heller ( gun safety ) and Shelby (voting rights).
@Jack:
Obviously, you don’t know the meaning of “lame duck”.
Here, let me help you.
There is no successor. There is only the President. We elect to 4 year terms, not 3 years.
You’re wrong on the facts, and wrong on the politics.
But bring it on.
@Pch101:
The GOP will ultimately lose anyway.
Their big shiny hope is that they run the clock out and “one of them” wins the next election. Only problem is that Donald Trump is not “one of them.” He can neither be trusted nor controlled. They are risking a very real repeat of the Harriet Miers/Alberto Gonzalez situation, where the biggest opponents of the Republican pick are Republicans.
I’m actually comforted by guys like Jack and Guarneri. There’s a phrase in poker called “the cards speak.” A weak hand will never beat a strong one. And the GOP has a very weak hand here. Jack and Guarneri and all the others in the right wing entertainment complex saying “go all in, go all in” on a weak hand?
Yes, please do.
@stonetools:
And it seems that would tickle you and most liberals pink, which is exactly why the Senate should refuse to confirm any Obama appointed justice.
@EddieInCA:
Haven’t met Jack before, have you?
@EddieInCA: Meanwhile any justice put forth by Obama will not get a vote. So, yes…bring it on.
@James Pearce:
The GOP is in disarray and there will likely be some disgruntled social conservatives and populists within their ranks when the primaries are over.
Replacing Scalia may be the issue that can unite them behind a presidential candidate who will be a compromise choice for such a fragmented group. (The 11th commandment — thou shalt not speak ill of another Republican — is obviously dead at this point.) Trashing Hillary hasn’t done them enough good to hand them a decisive win, so the GOP will have to rely heavily on turning out the base.
@Rafer Janders:
“If you have to eat shit, best not to nibble. Bite, chew, swallow, repeat.”
That’s the message Democrats have to understand when it comes to Obama not getting a vote on another justice.
It would be appreciated if someone would tell Jack about McCulloch v. Maryland , a 197-year old Supreme Court decision that contradicts the right-wing revisionist view on enumerated powers.
(Please type the explanation very slowly, so that he might have a chance of understanding it. Thanks in advance.)
@Jack:
Every one of these statements is dead wrong. Honestly, I despair of having any kind of discussion with conservatives these days, because it’s like they are posting from an alternate universe. Sadly, Obama and liberals in general ignored the pernicious effects of allowing Fox News and talk radio conservatives to spout right wing propaganda 24/7 without pushback. It has allowed the rise of an army of Fox zombies like Jack who just repeat the nonsense programmed into them by Fox and talk radio.I’m not even going to bother to ask Jack to substantiate his claims because he’ll just refer me to fact free “news” outlets like the Daily Caller. What’s the point of trying to engage with someone who gets his “facts” from the Daily Caller? It’s like talking to a young earth creationist who thinks that the Creation Science Museum is a reliable science information source. Anyway, good luck to those who want to engage. My rant is done, and I do feel better.
@Pch101: You mean like the revisionist views on the 2nd amendment that liberals have pushed?
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” – U S v. CRUIKSHANK, 92 U.S. 542 (1875) 92 U.S. 542.
Collective right my ass.
@James Pearce:
Which is not going to happen. This whole thing is pissing people off all across the political board. Republicans are betting they are going to be angry and pull the (R) lever but are going to be quite shocked at how many of their own are disgusted by this and go (D). It’s blatantly and unashamedly flipping the finger at the Constitution so hard the blinders were knocked off. Message boards all over the internet are starting to bear messages like “I hate it but it’s his constitutional right to appoint a judge”. They totally approve of the denial via dragged-out hearings but to flat out say STFUNo? It rankles the reasonable and unreasonable alike.
It’s getting under people’s skin because it shows an extreme level of obstinatence and asshattery that makes them realized how messed up these politicians are. It’s very very clear its them throwing a tantrum. Handwaving a YEAR away is making it worse. Not only will Dems come out to vote in outrage but some Repubs will decide their party’s finally lost the plot and sit this one out. Running out the clock only works if it costs your opponent the win…….
Poor Jack doesn’t understand the Cruikshank decision.
Big hint: You need to read the entire passage to understand what it says.
The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the “powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,” “not surrendered or restrained” by the Constitution of the United States.
Cruikshank was used to argue FOR gun control, not against it, on the basis that it was a state and local matter. In other words, the opposite of what you think that it said.
@Jen:
I think in terms of politics, the best candidate would be this one:
Kelly is from Iowa. Check Grassley (who chairs the Senate Judiciary Committee, and who is running for re-election)is the senior senator from Iowa. It would be interesting to see Grassley justify not considering her. He advocated for her and voted for her three years ago.
@stonetools: That would be a beautiful thing to watch.
I’m going to need to buy more popcorn.
@Castanea: That was a sweet fantasy, or good nuclear option – Clinton and Sanders should mention it to Mitch – if the GOP keeps throwing a temper tantrum.
But I liked this one better:
http://www.thedailybeast.com/articles/2016/02/15/the-gop-s-worst-nightmare-scotus-nominee.html
@stonetools:
Several of the supposed short list names are individuals who the Senate/Republicans will have a difficult time explaining their fury and whangst. I saw a few hot button ones (Loretta Lynch? *wince*) but the rest fairly well respected and have enjoyed previous Senate approval. It just makes the whole irrational tantrums aspect more obvious; I’ve seen people already arguing that Srinivasan shouldn’t qualify as he wasn’t “born in the USA” while cheering on the Canadian-born Cruz’s SC nominee boycott.
They’re really gonna f-themselves on this and can’t see it coming…..
@Jack:
Oh it was. It’s called editing.
Also, this:
The biggest thing that bugs me about this paragraph is that not one of these statements are even close to being, well, factual.
You’re certainly entitled to your opinion, but don’t mistake these statements as anything other than the squishy feelings of one dude. Convincing arguments are made of other things.
@stonetools:
This also happens to be why Republicans are planning to block the nominee.
They know the stakes, even if they haven’t come up with a suitable plan to address their concerns.
That’s one of the more morbidly funny things about all of this…Republicans won’t have a difficult time defending freezing out Srinivasan…they have no shame and they constantly act as though the American people have no memory of what has happened in the past…sadly, they don’t even act as the mature majority in Congress, but rather, as an obstructionist minority on so many things, and in this latest mess, they try to justify what they’re doing by making the pitiful claim that the president has acted unconstitutionally in the past…it’s sad that rather than having a true opposition party we have a reality show from Fox News running 1/3 of the federal government…
The constitution is clear the President has the authority to nominate a justice to the Supreme Court, period. He is not a lame duck and has 11 months left in his Presidency. The Presidential term is 4 years not 3 years. The Right is afraid of losing control and will stop at nothing to ensure their future. This is the system we have and whether you like it or not that’s the way it is.
@Jack:
What you should understand, Jack, is that Obama has not, will not back down. He’s in the “out of f**ks left to give” phase of his presidency and would be more than happy to go out swinging over a SC nomination. (His record on beating back GOP overreach is pretty good.)
He also happens to be much smarter than Ted Cruz et al, in the sense that he didn’t show his hand (more poker metaphors) at the earliest opportunity. He’s going to proceed as if Cruz/McConnell never said anything, practically daring Republicans to take him on, knowing full well that if there’s a political price to be paid on this one, it won’t be paid by Democrats.
@James Pearce:
It’s quite the opposite. The conservatives will now be convinced that Obama has no authority to appoint Scalia’s replacement (read Jack’s comments for a sense of the kind of disinformation that will resonate among the rabid base) and that this election is their key to taking the country back from the evil Kenyan who has hijacked the joint and appoint a judge who will represent true Amuricahn values.
The goal of the GOP is to turn Scalia into a campaign issue for its side, and I believe that the effort will be successful. (The Republicans may not retake the White House, but this will probably increase their turnout.) It won’t have the same galvanizing effect for the Democrats, while the middle will remain fairly oblivious to it.
@Pch101: Maybe, but I think that remains to be seen, and a lot will depend on who receives the R nomination. While the culture warrior stuff will galvanize a certain part of the base, the Republican nominee can’t go too far. I have many friends who are Republicans who are 45 and under who were not just fine with the Obergefell decision, they were happy about it. If in their attempts to motivate the base they turn off younger voters by being too extreme on the culture stuff, they could well damage their turnout. We simply won’t know how this will play out until there’s a nominee.
@Pch101:
The cards speak.
Obama does have authority to appoint Scalia’s replacement. (Flip side: Congress, in their “advise and consent” role, has authority to reject it.)
The GOP as a party may want to turn this into a campaign issue, but they already have plenty of issues to deal with when it comes to their campaign. The biggest one is a guy named Donald Trump.
@James Pearce:
When Marco Rubio or someone else who is more calm wins the nomination, the Trump and Cruz supporters are going to be mighty peeved. At that point, the GOP establishment will need something to keep them from staying home, and this just might be it.
@Jen:
Establishment and social conservatives alike will prefer conservative judges, albeit for different reasons. The idea of potentially pushing the decision to a Republican president will make many Republicans happy.
@Pch101:
Rubio? His poll numbers say he still has a shot, but for a lot of people who are not already supporters, his campaign is a joke. (“Let us dispel with this notion that Marco Rubio will ever be president.”)
Trump is still the guy to beat. RCP has him up 20 points in SC. He’s up by 18 in MI.
Primary wins are not determined strictly by popular vote.
@Doug Mataconis:
Except for the fact that Republicans have openly refused to accept the legitimacy of the last two Democratic presidents, and in fact impeached one of them because they could – you can definitely say that all things are equal and both sides do it.
@Pch101:
So you’re going long on Rubio?
@James Pearce:
At this rate, the GOP will end up with a brokered convention. The establishment would have preferred Jeb, but they’ll settle for Rubio. It will not want Trump under any circumstances, and will do its best to avoid Cruz.
The fun will begin if Trump decides to go independent. That would be a great day for the Democrats.
@Pch101:
They’ll settle for any of them, as long as they toe the line. (Trump’s insistence on moving the line rather than just toeing it has butt-hurted the establishment, but it’s the very quality that makes him popular with “the base.”)
@Doug Mataconis: No we will never know what would have happen if G W would have had the chance to pick SCJ.. But there were Dems that was totally against what Schumer was saying, not one GOP candidate or member of the congress is against what Mitch is saying now. So all of you so call constitutionalists out there here is a blatant disregard for the constitution. In other words, if you are a person of color or a woman the GOP don’t give a dam about the constitution unless it benefits all the guys in the good old boys club.
@Pch101: I’m not sure that the number’s favor someone who is “more calm” than Trump or Cruz anymore. I hope they do because I would hate to break in a new party at my age, but…
@Hal_10000:
Well, that’s different, for some reason or another.
I think the Republicans are bat sh*t crazy, but I find it very hard to believe that the Democratic Party would have confirmed a Bush appointment in his last year. However, to not even go through the motions of pretending to consider it is something new. The Dems would have been smart enough to go through the motions before rejecting the candidate (and smart is good – who wants idiots running the country?). I think the reason the GOP is saying they won’t even do that is because they’re playing to the craziest elements of their base.
@EddieInCA:
Cherry picking the meaning, huh? Dig a little deeper and you’ll find Merriam Webster acknowledging “lame duck” as “one whose position or term in office will soon end.” Even CNN routinely refers to Obama’s last year as (potentially) being a “lame duck” presidency.
Presidential historian Robert Dallek notes, “”A lame duck president is someone who in our recent history is in his second term.” Though, in this instance, he was referring to a second term president after mid-term elections (2014 in Obama administration years).
I’m not claiming to agree with Jack, but you dismissing his accuracy with a speciously presented definition (you have to know the common usage of “lame duck” even if it doesn’t support the point you’re trying to make) is a fine example of exactly what is wrong with political discourse these days: a lack of intellectual honesty and ad hominem ad nauseum (I think I just coined that term).
We all must be better than that!!!
Well, that one is not.
Obama made a recess appointment when the Senate was not in recess except by his definition. Obama removed the welfare work requirement despite it being written into the law. Obama made Obamacare changes by dictate even though it is a written law.
Note, my use of the word “contempt” equates to “disregard” — not one of the negative connotations or denotations associated with it.
Just be intellectually honest. Obama has done some things that he should not have done.
@Modulo Myself: I think you’re the hateful one…
If it is true that the NDAA (national defense authorization act) gives the president the power to declare anybody to be an enemy combatant and any group to be a terrorist organization,
could a president declare a supreme court justice to be an enemy combatant and send them off to guantanamo? or how about the Builderberg group or CFR? or anyone else that stands in their way? no judge, no jury, just predator drone.
@stonetools:
I would love to see Andrew Napolitano on the Supreme Court
http://tinyurl.com/WhatIfFired
http://tinyurl.com/FuddySubud
HILLARY/SOETORO FOR PRISON 2016!
@Pch101: It is my understanding that Clarence Thomas told Larry Nichols that there is a 1970’s law that prohibits a last year president from appointing a Supreme Court Judge, that it must wait for the next President. An SUV from the DHS was in Nichol’s driveway within an hour of that phone call.